All products (the “Products”) sold by or through TyTek Medical Inc. (“TyTek Medical” or “we”) to a customer (the “Customer” or “you”) are furnished subject to these Terms and Conditions of Sale (hereinafter, these “Terms and Conditions”):
1. Price and Order Acceptance. Unless otherwise agreed in writing by us and you, prices and delivery for domestic U.S. sales are FCA (INCOTERMS 2020 ed.) TyTek Medical’s location; prices and delivery for international sales are EXW (Incoterms 2020 ed.) TyTek Medical’s location. Any tax, assessment, duty, custom or other fee of any nature imposed upon the Products, their sale, transportation, delivery, use or consumption are not included and may be invoiced at any time. Prior to acceptance, the price quoted is subject to change. Once we accept an order, it may not be cancelled, except with our consent and upon terms that will indemnify us against loss or damage arising from the cancellation.
2. Payment and Security Interest. All orders must be prepaid, unless you are approved for credit. All payments are to be made without setoff or reduction of any kind for any reason. Restrictive endorsements or other statements on checks will not apply to us. Commencing 30 days after invoice date, interest at the rate of 1.5% per month may be added to any unpaid portion of the invoiced amount. In order to secure payment of the purchase price and the performance of your other obligations to us, you grant us by your order a purchase money security interest in each Product and, upon our request, you will execute promptly any additional documents required by us to perfect this security interest. Payments by Visa, Master Card, Discover, American Express, and other credit card companies that you propose and we agree to be used for payments may be processed by you in your local currency subject to our receiving the full amount of U.S. Dollars net of all fees and other charges. If your local currency is not supported, then payment will be processed in US Dollars. All other payment methods will be processed in US Dollars only.
3. Shipping. Any schedule that we provide to you for delivery or replacement is our then current estimate. We will use reasonable efforts to meet the schedule, but do not warrant or guarantee any particular dates. Your acceptance of the Product constitutes a waiver of any claim for delay. If you so request and do not designate the carrier, we may select the carrier for delivery and inform you of the carrier selected.. U.S. domestic shipments will be made FCA (INCOTERMS 2020 ed.) our location unless we and you otherwise agree in writing. The carrier will be deemed to be your agent, and you will bear all freight costs and the risk of loss or damage during transit.
4. International Shipping. For Products shipped internationally, manuals, instructions and safety warnings may not be in destination country languages and the Products (and accompanying materials) may not be designed in accordance with destination country standards, specifications, and labeling requirements. You are responsible for assuring that the Product can be lawfully imported to a destination country. When ordering from us, the recipient is the importer of record and must comply with all laws and regulations of the destination country. Customs policies vary widely from country to country; you should contact your local customs office for further information. When customs clearance procedures are required, it can cause delays beyond our original delivery estimates.
5. Returns. No returns will be accepted beyond 30 days from the date of invoice. Opened or damaged Products cannot be returned. Sterile Products must be returned for inspection by us, and if we determine that one or more sterile Products are defective, we will refund to you the payment you made for such defective sterile Products. All returns must be pre-approved by us and received within 30 days of that approval. A Return Authorization is required for all returns. The Return Authorization must be visible on the outside of the shipping box or on the mailing label. We may refuse returned Products without a visible Return Authorization. We must receive a returned Product before a credit for it will be issued. There is a 15% processing fee on returned Products that are determined not to be defective. You are responsible for shipping costs on returned Products.
6. Limited Warranty. TyTek Medical warrants that Products are free from defects in material and workmanship for a period of 12 months from the date a Product is shipped to you. Certain Products are medical devices intended solely for use by appropriately trained healthcare professionals. Any use of the Product beyond its specific use (as described in each Product’s instructions) or by a person not trained or legally authorized to use the Product voids this limited warranty. TyTek will not be responsible for any use by you or by those to whom you resell or otherwise share or transfer Products that are medical devices intended solely for use by appropriately trained healthcare professionals if such Products are used by persons who are not appropriately trained healthcare professionals. EXCEPT AS SET FORTH HEREIN, WE MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS AND WE SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Warranty claims must be made in writing during the warranty period to the following address: TyTek Medical Inc., 8904 Beckett Road, West Chester, Ohio 45069, Attention: Warranty Claims Manager. If a Product is alleged to be defective, the Product must be returned during the warranty period to the address stated above. This warranty does not cover damage resulting from ordinary wear and tear, misuse, neglect, accident, alterations, failure to follow instructions, fire, or acts of God.
7. Limitation of Remedies and Liabilities. Regardless of the type of claim against us related to the Product and/or their performance, your sole and exclusive remedy is, at our sole discretion, (a) repair or replacement of the Product or (b) refund of the price paid for the Product. For any claim of any kind against us concerning a Product (including, but not limited to, any claim that we have failed to satisfy our repair/replacement obligation), you are limited (subject to the exclusions set forth below) to recovering only your direct damages up to but not in excess of the price you paid to us for the Product. YOU ACKNOWLEDGE AND AGREE THAT WE ARE NOT LIABLE TO YOU OR YOUR CUSTOMERS, EMPLOYEES OR AGENTS, UNDER ANY CLAIM OR CIRCUMSTANCE (INCLUDING WITHOUT LIMITATION ANY CIRCUMSTANCE INVOLVING A FINDING THAT A WARRANTY OR REMEDY HAS FAILED OF ITS ESSENTIAL PURPOSE), WHETHER THE CLAIM SOUNDS IN CONTRACT, TORT, OR OTHER LEGAL THEORY, FOR INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS OR REVENUE, LOST SALES, LOST GOODWILL, OR LOSS OF USE OF ANY PRODUCT.
8. Inspection and Acceptance. You agree to inspect promptly each Product upon receipt. Unless you timely notify us in writing that you reject the Product and set forth with specificity the reasons for such rejection, the Product will be deemed accepted by you within 30 days of delivery. Acceptance arising from a failure to reject timely will be final and irrevocable.
9. Safe Operation. You will use, and require all persons using a Product to use, any and all proper and safe operating procedures set forth in the applicable manual and instruction sheets. You will not remove or modify any safety device or warning installed on or attached to a Product.
10. Regulatory Restrictions. Certain Products are medical devices subject to regulation by the U.S. Food and Drug Administration (“FDA”) and state and local regulatory agencies. You represent that you will use Products which are restricted to use by a trained healthcare professional authorized to purchase directly such Products only in that manner and will complystrictly with applicable regulations and the Products’ manuals, instructions and safety warnings. You further agree not to share the Products with people who are unauthorized to purchase the Products under regulatory restrictions. You will not disassemble, repair, tamper with, modify or alter the Products nor use them for applications not approved by FDA as doing so can be unsafe and have dangerous consequences. All sales of Products are subject to U.S. laws and regulations regarding the sale of Products, including their use and any export of Products that would infringe any laws and regulations involving sanctioned individuals and entities, other sanctions, money laundering, export control, and other applicable controls
11. Indemnification. You agree to indemnify, defend and hold us, including our shareholders, directors, agents, employees, subsidiaries, affiliates, parents, successors and assigns, harmless from any claim, demand, cause of action, debt or liability (including reasonable attorneys’ fees, expenses and court costs) arising from: (a) your misuse or abuse of the Products, (b) your failure to abide by all applicable laws, rules, regulations and orders that affect the Products, (c) your breach of these Terms and Conditions or (d) your omissions, misrepresentations, or negligence.
12. Governing Law, Forum Selection, and Limitation Period. These Terms and Conditions, the construction of these Terms and Conditions, all rights and obligations between the parties to these Terms and Conditions and other documents regarding purchase and sale of Products, and any and all claims arising out of or relating to the subject matter of these Terms and Conditions (including all tort claims), shall be governed by the laws of the State of Ohio, U.S.A., without regard to its conflicts of law principles. The applicability of the U.N. Convention on the International Sale of Goods is hereby excluded.Any controversy or claim arising out of or relating to the agreement for purchase and sale of Products (including these Terms and Conditions), or the breach thereof, shall be settled by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Any such claim must be brought within two years from the date on which the claim accrued.
13. Severability of Terms. The provisions of these Terms and Conditions will be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of these Terms and Conditions, or the application thereof to any person or any circumstance, is invalid or unenforceable, (i) a suitable and equitable provision will be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision, and (ii) the remainder of these Terms and Conditions and the application of such provision to other persons or circumstances shall not be affected by such invalidity or unenforceability, nor will such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.